Congressional Research Service ˜ The Library of Congress

CRS Report for Congress

Received through the CRS Web

Order Code 95-815 A

Freedom of Speech and Press:

Exceptions to the First Amendment

Updated August 27, 2003

Henry Cohen

Legislative Attorney

American Law Division

Freedom of Speech and Press: Exceptions to the First

Amendment

Summary

The First Amendment to the United States Constitution provides that "Congress

shall make no law . . . abridging the freedom of speech, or of the press. . . ." This

language restricts government both more and less than it would if it were applied

literally. It restricts government more in that it applies not only to Congress, but to

all branches of the federal government, and to all branches of state and local

government. It restricts government less in that it provides no protection to some

types of speech and only limited protection to others.

This report provides an overview of the major exceptions to the First

Amendment – of the ways that the Supreme Court has interpreted the guarantee of

freedom of speech and press to provide no protection or only limited protection for

some types of speech. For example, the Court has decided that the First Amendment

provides no protection to obscenity, child pornography, or speech that constitutes

"advocacy of the use of force or of law violation . . . where such advocacy is directed

to inciting or producing imminent lawless action and is likely to incite or produce

such action."

The Court has also decided that the First Amendment provides less than full

protection to commercial speech, defamation (libel and slander), speech that may be

harmful to children, speech broadcast on radio and television, and public employees’

speech. Even speech that enjoys the most extensive First Amendment protection may

be subject to "regulations of the time, place, and manner of expression which are

content-neutral, are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication." And, even speech that

enjoys the most extensive First Amendment protection may be restricted on the basis

of its content if the restriction passes "strict scrutiny," i.e., if the government shows

that the restriction serves "to promote a compelling interest" and is "the least

restrictive means to further the articulated interest."

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Obscenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Child Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Content-Based Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Prior Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Commercial Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Speech Harmful to Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Children’s First Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Time, Place, and Manner Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Incidental Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Symbolic Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Compelled Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Radio and Television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Freedom of Speech and Government Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Free Speech Rights of Government Employees

and Government Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1 Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).

2 Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this

and the next paragraph are cited in footnotes accompanying the subsequent discussion of

these prohibitions and restrictions.

Freedom of Speech and Press: Exceptions

to the First Amendment

Introduction

The First Amendment to the United States Constitution provides that "Congress

shall make no law . . . abridging the freedom of speech, or of the press. . . ." This

language restricts government both more and less than it would if it were applied

literally. It restricts government more in that it applies not only to Congress, but to

all branches of the federal government, and to all branches of state and local

government.1 It restricts government less in that it provides no protection to some

types of speech and only limited protection to others.

This report provides an overview of the major exceptions to the First

Amendment — of the ways that the Supreme Court has interpreted the guarantee of

freedom of speech and press to provide no protection or only limited protection for

some types of speech.2 For example, the Court has decided that the First Amendment

provides no protection to obscenity, child pornography, or speech that constitutes

"advocacy of the use of force or of law violation . . . where such advocacy is directed

to inciting or producing imminent lawless action and is likely to incite or produce

such action."

The Court has also decided that the First Amendment provides less than full

protection to commercial speech, defamation (libel and slander), speech that may be

harmful to children, speech broadcast on radio and television, and public employees’

speech. Even speech that enjoys the most extensive First Amendment protection may

be subject to "regulations of the time, place, and manner of expression which are

content-neutral, are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication." And, even speech that

enjoys the most extensive First Amendment protection may be restricted on the basis

of its content if the restriction passes "strict scrutiny," i.e., if the government shows

that the restriction serves "to promote a compelling interest" and is "the least

restrictive means to further the articulated interest."

CRS-2

3 For additional information, see CRS Report 95-804, Obscenity and Indecency:

Constitutional Principles and Federal Statutes.

4 Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting,

wrote: "[T]here is no special historical evidence that literature dealing with sex was

intended to be treated in a special manner by those who drafted the First Amendment." Id.

at 514.

5 Id. at 485.

6 Miller v. California, 413 U.S. 15, 27 (1973).

7 Id. at 24 (citation omitted).

8 Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105

(1974), the Court noted that a "community" was not any "precise geographic area," and

suggested that it might be less than an entire state. In Ashcroft v. American Civil Liberties

Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that "Web publishers

currently lack the ability to limit access to their sites on a geographic basis," and that

therefore the use of community standards to define "obscenity" "would effectively force all

speakers on the Web to abide by the ‘most puritan’ community’s standards." Nevertheless,

the Court found that use of community standards "does not by itself render" a statute

unconstitutional." Id. at 585 (emphasis in original).

Obscenity3

Obscenity apparently is unique in being the only type of speech to which the

Supreme Court has denied First Amendment protection without regard to whether it

is harmful to individuals. According to the Court, there is evidence that, at the time

of the adoption of the First Amendment, obscenity "was outside the protection

intended for speech and press."4 Consequently, obscenity may be banned simply

because a legislature concludes that banning it protects "the social interest in order

and morality."5 No actual harm, let alone compelling governmental interest, need be

shown in order to ban it.

What is obscenity? It is not synonymous with pornography, as most

pornography is not legally obscene; i.e., most pornography is protected by the First

Amendment. To be obscene, pornography must, at a minimum, "depict or describe

patently offensive ‘hard core’ sexual conduct."6 The Supreme Court has created a

three-part test, known as the Miller test, to determine whether a work is obscene.

The Miller test asks:

(a) whether the "average person applying contemporary community standards"

would find that the work, taken as a whole, appeals to the prurient interest; (b)

whether the work depicts or describes, in a patently offensive way, sexual

conduct specifically defined by the applicable state law; and (c) whether the

work, taken as a whole, lacks serious literary, artistic, political, or scientific

value.7

The Supreme Court has clarified that only "the first and second prongs of the

Miller test — appeal to prurient interest and patent offensiveness — are issues of fact

for the jury to determine applying contemporary community standards."8 As for the

third prong, "[t]he proper inquiry is not whether an ordinary member of any given

CRS-3

9 Pope v. Illinois, 481 U.S., at 500-501.

10 Stanley v. Georgia, 394 U.S. 557, 568 (1969).

11 United States v. Reidel, 402 U.S. 351 (1971).

12 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).

13 For additional information, see CRS Report 95-406, Child Pornography: Constitutional

Principles and Federal Statutes.

14 New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of "sexually explicit

conduct" in the federal child pornography statute includes "lascivious exhibition of the

genitals or pubic area of any person [under 18], and "is not limited to nude exhibitions or

exhibitions in which the outlines of those areas [are] discernible through clothing." 18

U.S.C. §§ 2256(2)(A)(v), 2252 note.

15 Osborne v. Ohio, 495 U.S. 103 (1990).

16 Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).

17 Id. at 249; see also id. at 242.

18 Id. at 253.

community would find serious literary, artistic, political, or scientific value in

allegedly obscene material, but whether a reasonable person would find such value

in the material, taken as a whole."9

The Supreme Court has allowed one exception to the rule that obscenity is not

protected by the First Amendment: one has a constitutional right to possess obscene

material "in the privacy of his own home."10 However, there is no constitutional

right to provide obscene material for private use11 or even to acquire it for private

use.12

Child Pornography13

Child pornography is material that visually depicts sexual conduct by children.14

It is unprotected by the First Amendment even when it is not obscene; i.e., child

pornography need not meet the Miller test to be banned. Because of the legislative

interest in destroying the market for the exploitative use of children, there is no

constitutional right to possess child pornography even in the privacy of one’s own

home.15

In 1996, Congress enacted the Child Pornography Protection Act (CPPA),

which defined "child pornography" to include visual depictions that appear to be of

a minor, even if no minor is actually used. The Supreme Court, however, declared

the CPPA unconstitutional to the extent that it prohibited pictures that are produced

without actual minors.16 Pornography that uses actual children may be banned

because laws against it target "[t]he production of the work, not its content"; the

CPPA, by contrast, targeted the content, not the production.17 The government "may

not prohibit speech because it increases the chance an unlawful act will be committed

‘at some indefinite future time.’"18 In 2003, Congress responded by enacting Title

V of the PROTECT Act, P.L. 108-21, which prohibits any "digital image, computer

CRS-4

19 Schenck v. United States, 249 U.S. 47, 52 (1919).

20 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 123 S. Ct.

468 (2002) (statement of Justice Stevens accompanying denial of certiorari).

21 Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982); Planned Parenthood v. American Coalition of Life

Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2637 (2003) (the

"Nuremberg Files" case); Virginia v. Black, 123 S. Ct. 1536, 1548 (2003) ("Intimidation in

the constitutionally proscribable sense of the word is a type of true threat, where a speaker

directs a threat to a person or group of persons with the intent of placing the victim in fear

of bodily harm or death.").

22 Sable Communications of California, Inc. v. Federal Communications Commission, 492

U.S. 115, 126 (1989).

23 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question

"whether, in cases where information has been acquired unlawfully by a newspaper or by

a source, the government may ever punish not only the unlawful acquisition, but the ensuing

publication as well." Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper, 532 U.S.

514 (2001), the Court held that a content-neutral statute prohibiting the publication of

illegally intercepted communications (in this case a cell phone conversation) violates free

(continued...)

image, or computer-generated image that is, or is indistinguishable from, that of a

minor engaging in sexually explicit conduct." It also prohibits "a visual depiction of

any kind, including a drawing, cartoon, sculpture, or painting, that . . . depicts a

minor engaging in sexually explicit conduct," and is obscene or lacks serious literary,

artistic, political, or scientific value.

Content-Based Restrictions

Justice Holmes, in one of his most famous opinions, wrote:

The most stringent protection of free speech would not protect a man in falsely

shouting fire in a theater and causing a panic. . . . The question in every case is

whether the words used . . . create a clear and present danger . . . .19

In its current formulation of this principle, the Supreme Court held that

"advocacy of the use of force or of law violation" is protected unless "such advocacy

is directed to inciting or producing imminent lawless action and is likely to incite or

produce such action."20 Similarly, the Court held that a statute prohibiting threats

against the life of the President could be applied only against speech that constitutes

a "true threat," and not against mere "political hyperbole."21

In cases of content-based restrictions of speech other than advocacy or threats,

the Supreme Court generally applies "strict scrutiny," which means that it will uphold

a content-based restriction only if it is necessary "to promote a compelling interest,"

and is "the least restrictive means to further the articulated interest."22

Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from

publishing the name of a rape victim, lawfully obtained.23 This is because there

CRS-5

23 (...continued)

speech where the person who publishes the material did not participate in the interception,

and the communication concerns a public issue.

24 However, the Court did "not rule out the possibility that, in a proper case, imposing civil

sanctions for publication of the name of a rape victim might be . . . overwhelmingly

necessary to advance" a compelling state interest. Id. at 537.

25 Near v. Minnesota, 283 U.S. 697, 716 (1931).

26 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Campus "hate speech"

prohibitions at public colleges (the First Amendment does not apply to private colleges) are

apparently unconstitutional, even as applied to fighting words, if they cover only certain

types of hate speech, such as speech based on racial hatred. This conclusion is based on the

cross-burning case, R.A.V. v. City of St. Paul, infra note 127.

27 The Supreme Court struck down an injunction against publishing the Pentagon Papers,

writing: "Any system of prior restraints of expression comes to the Court bearing a heavy

presumption against its constitutional validity." New York Times Co. v. United States, 403

U.S. 713, 714 (1971).

28 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court

order restraining the publication or broadcast of accounts of confessions or admissions made

by the defendant at a criminal trial). Injunctions that are designed to restrict merely the

time, place, or manner of a particular expression are subject to a less stringent application

(continued...)

ordinarily is no compelling governmental interest in protecting a rape victim’s

privacy.24 By contrast, "[n]o one would question but that a government might

prevent actual obstruction to its recruiting service or the publication of the sailing

dates of transports or the number and location of troops."25 Similarly, the

government may proscribe "‘fighting’ words — those which by their very utterance

inflict injury or tend to incite an immediate breach of the peace."26 Here the Court

was referring to utterances that "are no essential part of any exposition of ideas," as

opposed to, for example, flag burning, which is discussed below, under "Symbolic

Speech."

Prior Restraint

There are two ways in which the government may attempt to restrain speech.

The more common is to make a particular category of speech, such as obscenity or

defamation, subject to criminal prosecution or civil suit, and then, if someone

engages in the proscribed category of speech, to hold a trial and impose sanctions if

appropriate. The second way is by prior restraint; i.e., for a court to issue a temporary

restraining order or an injunction against engaging in particular speech – publishing

the Pentagon Papers, for example.27 The Supreme Court has written:

[P]rior restraints are the most serious and least tolerable infringement on First

Amendment rights. . . . A prior restraint, . . . by definition, has an immediate and

irreversible sanction. If it can be said that a threat of criminal or civil sanctions

after publication "chills" speech, prior restraint "freezes" it at least for the time.

he damage can be particularly great when the prior restraint falls upon the

communication of news and commentary on current events.28

CRS-6

28 (...continued)

of First Amendment principles; see, "Time, Place, and Manner Restrictions," below.

29 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations Commission, 413

U.S. 376, 390 (1973).

30 See, Mark A. Lemley and Eugene Volohk, Freedom of Speech and Injunctions in

Intellectual Property Cases, 48 Duke Law Journal 147, 169-171 (1998).

31 DVD Copy Control Association, Inc. v. Bunner, S102588 (Cal. Sup. Ct., Aug. 25, 2003),

slip. op. at 25. For the test regarding content-neutral injunctions, see text accompanying

note 107, infra.

32 Lemley and Volokh, supra, note 30 (arguing that intellectual property should have the

same First Amendment protection from preliminary injunctions as other speech).

33 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).

34 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989)

(emphasis in original). In Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 123 S.

Ct. 2554 (2003), Nike was sued for unfair and deceptive practices for allegedly false

statements it made concerning the working conditions under which its products were

manufactured. The California Supreme Court ruled that the suit could proceed, and the

Supreme Court granted certioriari, but then dismissed it as improvidently granted, with a

concurring and two dissenting opinions. The issue left undecided was whether Nike’s

statements, though they concerned a matter of public debate and appeared in press releases

and letters rather than in advertisements for its products, should be deemed "‘commercial

speech’ because they might affect consumers’ opinions about the business as a good

corporate citizen and thereby affect their purchasing decisions." Id. at 2555 (Stevens, J.,

concurring).

"The special vice of a prior restraint is that communication will be suppressed

. . . before an adequate determination that it is unprotected by the First

Amendment."29 The prohibition on prior restraint, thus, is essentially a rule against

restraint until a final judicial determination that the restricted speech is not protected

by the First Amendment. It is a rule, in other words, against temporary restraining

orders and preliminary injunctions pending final judgment, not against permanent

injunctions after a final judgment is made that the restricted speech is not protected

by the First Amendment.30 Furthermore, "only content-based injunctions are subject

to prior restraint analysis."31 And prior restraint is generally permitted, even in the

form of preliminary injunctions, in intellectual property suits, such as those for

copyright infringement.32

Commercial Speech

"The Constitution . . . affords a lesser protection to commercial speech than to

other constitutionally guaranteed expression."33 Commercial speech is "speech that

proposes a commercial transaction."34 That books and films are published and sold

for profit does not make them commercial speech; i.e., it does not "prevent them

from being a form of expression whose liberty is safeguarded [to the maximum

CRS-7

35 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).

36 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447

U.S. 557, 566 (1980).

37 See, Edge Broadcasting, supra note 33, 509 U.S., at 427.

38 Id. at 430.

39 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).

40 We do not include among the ten Glickman v. Wileman Brothers & Elliott, Inc., and

United States v. United Foods, Inc., in which the Court did not apply Central Hudson test

because what was challenged in these cases were not speech restrictions but assessments for

government-compelled advertisements. (It upheld one of these assessments and struck one

down.) We discuss these cases below, under "Compelled Speech."

extent] by the First Amendment."35 Commercial speech, however, may be banned

if it is false or misleading, or if it advertises an illegal product or service. Even if fits

in none of these categories, the government may regulate it more than it may regulate

fully protected speech.

The Supreme Court has prescribed the four-prong Central Hudson test to

determine whether a governmental regulation of commercial speech is constitutional.

This test asks initially (1) whether the commercial speech at issue is protected by the

First Amendment (that is, whether it concerns a lawful activity and is not misleading)

and (2) whether the asserted governmental interest in restricting it is substantial. "If

both inquiries yield positive answers," then to be constitutional the restriction must

(3) "directly advance[ ] the governmental interest asserted," and (4) be "not more

extensive than is necessary to serve that interest."36

The Supreme Court has held that, in applying the third prong of the Central

Hudson test, the courts should consider whether the regulation, in its general

application, directly advances the governmental interest asserted. If it does, then it

need not advance the governmental interest as applied to the particular person or

entity challenging it.37 Its application to the particular person or entity challenging

it is relevant in applying the fourth Central Hudson factor, although this factor too

is to be viewed in terms of "the relation it bears to the overall problem the

government seeks to correct."38 The fourth prong is not to be interpreted "strictly"

to require the legislature to use the "least restrictive means" available to accomplish

its purpose. Instead, the Court has held, legislation regulating commercial speech

satisfies the fourth prong if there is a reasonable "fit" between the legislature’s ends

and the means chosen to accomplish those ends.39

The Supreme Court has applied the Central Hudson test in all the commercial

speech cases it has decided since Central Hudson, and we discuss the ten most recent

below, in chronological order.40 In nine of these cases, the Court struck down the

challenged speech restriction; it has not upheld a commercial speech restriction since

1993. In its most recent commercial speech case, Thompson v. Western States

Medical Center, the Court noted that "several Members of the Court have expressed

doubts about the Central Hudson analysis and whether it should apply in particular

cases." These justices believe that the test does not provide adequate protection to

CRS-8

41 507 U.S. 410 (1993).

42 Id. at 424 (emphasis in original).

43 Id. at 428.

44 507 U.S. 761 (1993).

45 436 U.S. 447 (1978).

46 Edenfield, supra note 44, 507 U.S., at 775.

47 Id. at 770-771.

48 Edge Broadcasting, supra note 33, 509 U.S., at 421.

commercial speech, but the Court has found it unnecessary to consider whether to

abandon the test, because it has been striking down the statutes in question anyway.

In Cincinnati v. Discovery Network, Inc., the Court struck down a Cincinnati

regulation that banned newsracks on public property if they distributed commercial

publications, but not if they distributed news publications.41 As for the first two

prongs of the Central Hudson test, the Court found that the commercial publications

at issue were not unlawful or misleading, and that the asserted governmental interest

in safety and esthetics was substantial. As for the third and fourth prongs, although

banning commercial newsracks presumably advances the asserted governmental

interests, the distinction between commercial and noncommercial speech "bears no

relationship whatsoever to the particular interests that the city has asserted."42 The

city, therefore, did not establish "the ‘fit’ between its goals and its chosen means that

is required by our opinion in Fox."43

In Edenfield v. Fane,44 the Court struck down a Florida ban on solicitation by

certified public accountants, even though the Court had previously, in Ohralik v.

Ohio State Bar Association,45 upheld a ban on solicitation by attorneys. The Court

found that the government had substantial interests in the ban, including the

prevention of fraud, the protection of privacy, and the need to maintain CPA

independence and to guard against conflicts of interest. However, the Court found

no evidence that the ban directly advanced these interests, and noted, among other

things, that, "[u]nlike a lawyer, a CPA is not ‘a professional trained in the art of

persuasion,’" and "[t]he typical client of a CPA is far less susceptible to manipulation

than the young accident victim in Ohralik."46

The Court added, more generally, that the government’s burden in justifying a

restriction on commercial speech "is not satisfied by mere speculation or conjecture;

rather, a governmental body seeking to sustain a restriction on commercial speech

must demonstrate that the harms it recites are real and that its restriction will in fact

alleviate them to a material degree."47

In United States v. Edge Broadcasting Co., the Court upheld "federal statutes

that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State

that does not allow lotteries, while allowing such broadcasting by a broadcaster

licensed to a State that sponsors a lottery . . . ."48 The governmental interest in the

statutes was to balance the interests of states that prohibit lotteries and states that

CRS-9

49 512 U.S. 136 (1994). Curiously, the Court in Ibanez writes that "only false, deceptive,

or misleading commercial speech may be banned" (id. at 142), despite its decisions

upholding bans of truthful commercial speech in Edge Broadcasting, supra, and other cases.

Perhaps the Court meant that only false, deceptive, or misleading commercial speech may

be banned without consideration of the second, third, and fourth prongs of the Central

Hudson test.

50 Id. at 144.

51 514 U.S. 476 (1995).

52 Id. at 488.

53 515 U.S. 618 (1995).

operate lotteries. The broadcaster that challenged the statutes was licensed in North

Carolina, which does not allow lotteries, but broadcasted from only three miles from

the Virginia border, which does allow lotteries. The broadcaster claimed that

prohibiting it from broadcasting advertisements for the Virginia lottery did not

advance the governmental interest or represent a "reasonable fit" because North

Carolina radio listeners in its area were already inundated with advertisements from

Virginia stations advertising the Virginia lottery and because most of the

broadcaster’s listeners were in Virginia. The Supreme Court upheld the statutes

because, even if they did not advance the governmental interest or represent a

reasonable fit as applied to the particular broadcaster, they did as applied to the

overall problem the government sought to address.

In Ibanez v. Florida Board of Accountancy, the Court held that the Florida

Board of Accountancy could not reprimand an accountant for truthfully referring to

her credentials as a Certified Public Accountant and a Certified Financial Planner in

her advertising and other communication with the public, such as her business cards

and stationery.49 The Court wrote that it "cannot imagine how consumers can be

misled by her truthful representation" that she was a CPA."50

In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27

U.S.C. § 205(e), that prohibits beer labels from displaying alcohol content unless

state law requires such disclosure.51 The Court found sufficiently substantial to

satisfy the second prong of the Central Hudson test the government’s interest in

curbing "strength wars" by beer brewers who might seek to compete for customers

on the basis of alcohol content. However, it concluded that the ban "cannot directly

and materially advance" this "interest because of the overall irrationality of the

Government’s regulatory scheme."52 This irrationality is evidenced by the fact that

the ban does not apply to beer advertisements, and by the fact that the statute requires

the disclosure of alcohol content on the labels of wines and spirits.

In Florida Bar v. Went For It, Inc., the Court upheld a rule of the Florida Bar

that prohibited personal injury lawyers from sending targeted direct-mail solicitations

to victims and their relatives for 30 days following an accident or disaster.53 The Bar

argued "that it has a substantial interest in protecting the privacy and tranquility of

personal injury victims and their loved ones against intrusive, unsolicited contact by

CRS-10

54 Id. at 624.

55 Id. at 627.

56 Id. at 626.

57 The Court referred to the Central Hudson test as having three parts, and referred to its

second, third, and fourth prongs, as, respectively, its first, second, and third. The Court did

not, however, alter the substance of the test. In 44 Liquormart, Inc. v. Rhode Island, 517

U.S. 484, 529 (1996) (O’Connor, J., concurring), the justices apparently returned to the

traditional numbering.

58 Id. at 633. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court had

previously held that a state may not place a "ban on all direct-mail solicitations, whatever

the time frame and whoever the recipient." Florida Bar, 515 U.S., at 629 (emphasis in

original). The Court has also held that a nonprofit organization’s solicitation by letter of

prospective clients is a protected form of political expression (In re Primus, 436 U.S. 412

(1978)), and that a state may prohibit lawyers from soliciting prospective clients in person

(Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)). The Aviation Disaster

Family Assistance Act of 1996, 49 U.S.C. § 1136(g)(2), prohibits unsolicited

communications concerning a potential action for personal injury or wrongful death before

the 30th day following an accident involving an air carrier providing interstate or foreign

air transportation.

59 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 502 (1996).

60 Id.

61 Id. at 501. The nine justices were unanimous in striking down the law, which prohibited

advertising the price of alcoholic beverages, but only parts of Justice Stevens’ opinion for

the Court were joined by a majority of justices. The quotations above, for example, are

from Part IV of the Court’s opinion, which was joined by only Justices Kennedy and

Ginsburg besides Justice Stevens.

lawyers,"54 and the Court found that "[t]he anecdotal record mustered by the Bar" to

demonstrate that its rule would advance this interest in a direct and material way was

"noteworthy for its breadth and detail"55; it was not "mere speculation and

conjecture."56 Therefore, the rule passed what the Court called the second prong of

the Central Hudson test.57 As for the final prong, the Court found the Bar’s rule to

be "reasonably well tailored to its stated objective . . . ."58 In a subsequent case, the

Court wrote that, in Florida Bar v. Went For It, Inc., it had "upheld a 30-day prohibition

against a certain form of legal solicitation largely because it left so many

channels of communication open to Florida lawyers."59

In 44 Liquormart, Inc. v. Rhode Island, the Court, struck down a state statute

that prohibited disclosure of retail prices in advertisements for alcoholic beverages.60

In the process, it increased the protection that the Central Hudson test guarantees to

commercial speech by making clear that a total prohibition on "the dissemination of

truthful, nonmisleading commercial messages for reasons unrelated to the

preservation of a fair bargaining process" will be subject to a stricter review by the

courts than a regulation designed "to protect consumers from misleading, deceptive,

or aggressive sales practices."61

The Court added: "The First Amendment directs us to be especially skeptical

of regulations that seek to keep people in the dark for what the government perceives

CRS-11

62 Id. at 503.

63 Id. at 508, citing Central Hudson, supra note 36, 447 U.S., at 566, n.9.

64 527 U.S. 173 (1999).

65 Edge Broadcasting, supra notes 33, 48.

66 527 U.S., at 190, 195.

67 533 U.S. 525 (2001).

68 Id. at 551.

to be their own good."62 It concluded "that the price advertising ban cannot survive

the more stringent constitutional review that Central Hudson itself concluded was

appropriate for the complete suppression of truthful, nonmisleading commercial

speech."63

In Greater New Orleans Broadcasting Association, Inc. v. United States,64 the

Court applied the Central Hudson test to strike down, as applied to advertisements

of private casino gambling that are broadcast by radio or television stations located

in Louisiana, where such gambling is legal, the same federal statute it had upheld in

United States v. Edge Broadcasting Co.,65 as applied to broadcast advertising of

Virginia’s lottery by a radio station located in North Carolina, where no such lottery

was authorized. The Court emphasized the interrelatedness of the four parts of the

Central Hudson test; e.g., though the government has a substantial interest in

reducing the social costs of gambling, the fact that the Congress has simultaneously

encouraged gambling, because of its economic benefits, makes it more difficult for

the government to demonstrate that its restriction on commercial speech materially

advances its asserted interest and constitutes a reasonable "fit." In this case, "[t]he

operation of [18 U.S.C.] § 1304 and its attendant regulatory regime is so pierced by

exemptions and inconsistencies that the Government cannot hope to exonerate it. . . .

[T]he regulation distinguishes among the indistinct, permitting a variety of speech

that poses the same risks the Government purports to fear, while banning messages

unlikely to cause any harm at all."66

In Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central

Hudson test to strike down most of the Massachusetts Attorney General’s regulations

governing the advertising and sale of cigarettes, smokeless tobacco, and cigars.67 The

Court first found the "outdoor and point-of-sale advertising regulations targeting

cigarettes" to be preempted by the Federal Cigarette Labeling and Advertising Act,

15 U.S.C. §§ 1331-1341.68 By its terms, however, this statute’s preemption provision

applies only to cigarettes, so the Court considered the smokeless tobacco and cigar

petitioners’ First Amendment challenges to the outdoor and point-of-sale advertising

regulations. Further, the cigarette petitioners did not raise a preemption challenge to

Massachusetts’ sales practices regulations (regulations, described below, other than

outdoor and point-of-sale advertising regulations), so the Court considered the

cigarette as well as the smokeless tobacco and cigar petitioners’ claim that these

regulations violate the First Amendment.

The Court struck down the outdoor advertising regulations under the fourth

prong of the Central Hudson test, finding that the prohibition of any advertising

CRS-12

69 Id. at 562.

70 Id. at 563.

71 Id. at 566.

72 Id.

73 Id. at 567.

74 Id. at 569.

75 Id.

76 535 U.S. 357 (2002).

77 Id. at 360.

78 Id. at 360-361.

within 1,000 feet of schools or playgrounds "prohibit[ed] advertising in a substantial

portion of the major metropolitan areas of Massachusetts,"69 and that such a burden

on speech did not constitute a reasonable fit between the means and ends of the

regulatory scheme. "Similarly, a ban on all signs of any size seems ill suited to target

the problem of highly visible billboards, as opposed to smaller signs."70

The Court found "that the point-of-sale advertising regulations fail both the third

and fourth steps of the Central Hudson analysis."71 The prohibition on advertising

"placed lower than five feet from the floor of any retail establishment which is

located within a one thousand foot radius of" any school or playground did not

advance the goal of preventing minors from using tobacco products because "[n]ot

all children are less than 5 feet tall, and those who are certainly have the ability to

look up and take in their surroundings."72

The Court, however, upheld the sales practices regulations that "bar the use of

self-service displays and require that tobacco products be placed out of the reach of

all consumers in a location accessible only to salespersons."73 These regulations,

though they "regulate conduct that may have a communicative component," do so

"for reasons unrelated to the communications of ideas."74 The Court therefore

applied the O’Brien test for incidental restrictions of speech (see the section below

on "Incidental Restrictions") and concluded "that the State has demonstrated a

substantial interest in preventing access to tobacco products by minors and has

adopted an appropriately narrow means of advancing that interest."75

In Thompson v. Western States Medical Center,76 the Court struck down section

503A of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 353a, which "exempts

‘compounded drugs’ from the Food and Drug Administration’s standard drug

approval requirements as long as the providers of those drugs abide by several

restrictions, including that they refrain from advertising or promoting particular

compounded drugs."77 "Drug compounding," the Court explained, "is a process by

which a pharmacist or doctor combines, mixes, or alters ingredients to create a

medication tailored to the needs of an individual patient."78 The Court found that the

speech restriction in this case served "important" governmental interests, but that,

"[e]ven assuming" that it directly advances these interests, it failed the fourth prong

CRS-13

79 Id. at 369, 371.

80 Id. at 371, 372.

81 Id. at 373.

82 Id. at 374.

83 New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v.

Butts, 388 U.S. 130 (1967).

of the Central Hudson test.79 In considering the fourth prong, the Court wrote that

"the Government has failed to demonstrate that the speech restrictions are ‘not more

extensive than is necessary to serve’" the governmental interests, as "[s]everal nonspeech-

related means [of serving those interests] might be possible here."80 "If the

First Amendment means anything," the Court added, "it means that regulating speech

must be a last – not first – resort. Yet here it seems to have been the first strategy the

Government thought to try."81 The Court noted that it had "rejected the notion that

the Government has an interest in preventing the dissemination of truthful

commercial information in order to prevent members of the public from making bad

decisions with the information."82

In saying that the speech restrictions were "not more extensive than is necessary

to serve" the governmental interests, the Court was quoting from the fourth prong of

the Central Hudson test, but nowhere in Thompson did it note that it had previously

modified the fourth prong to require merely a reasonable "fit" between the

legislature’s ends and means, and not use of the least restrictive means to serve the

governmental interests. Rather, it wrote: "In previous cases addressing this final

prong of the Central Hudson test, we have made clear that if the Government could

achieve its interests in a manner that does not restrict speech, or that restricts less

speech, the Government must do so." Yet the Court did not state that it intended to

overrule its reasonable "fit" construction of the fourth prong.

Defamation

Defamation (libel is written defamation; slander is oral defamation) is the

intentional communication of a falsehood about a person, to someone other than that

person, that injures the person’s reputation. The injured person may sue and recover

damages under state law, unless state law makes the defamation privileged (for

example, a statement made in a judicial, legislative, executive, or administrative

proceeding is ordinarily privileged). Being required to pay damages for a defamatory

statement restricts one’s freedom of speech; defamation, therefore, constitutes an

exception to the First Amendment.

The Supreme Court, however, has granted limited First Amendment protection

to defamation. The Court has held that public officials and public figures may not

recover damages for defamation unless they prove, with "convincing clarity," that the

defamatory statement was made with "‘actual malice’ — that is, with knowledge that

it was false or with reckless disregard of whether it was false or not."83

CRS-14

84 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

The Court has also held that a private figure who sues a media defendant for

defamation may not recover without some showing of fault, although not necessarily

of actual malice (unless the relevant state law requires it). However, if a defamatory

falsehood involves a matter of public concern, then even a private figure must show

actual malice in order to recover presumed damages (i.e., not actual financial

damages) or punitive damages.84

CRS-15

85 Sable Communications of California, Inc. v. Federal Communications Commission, 492

U.S. 115, 126 (1989).

86 Id. In the case of content-based regulations, narrow tailoring requires that the regulation

be "the least restrictive means to further the articulated interest."

87 Ginsberg v. New York, 390 U.S. 629, 631 (1968).

88 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978);

Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654

(D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). The Supreme Court has

stated that, to be indecent, a broadcast need not have prurient appeal; "the normal definition

of ‘indecent’ refers merely to nonconformance with accepted standards of morality,"

Pacifica, 438 U.S. at 740. The FCC holds that the concept "is intimately connected with the

exposure of children to language that describes, in terms patently offensive as measured by

contemporary community standards for the broadcast medium, sexual or excretory activities

and organs, at times of the day when there is a reasonable risk that children may be in the

audience." Id. at 732. In Denver Area Educational Telecommunications Consortium, Inc.

v. Federal Communications Commission, 518 U.S. 727 (1996), the Supreme Court cited

Pacifica in upholding part of a federal statute that regulates indecent material on cable

television. See, "Radio and Television," below.

89 For additional information, see CRS Report 95-804, Obscenity and Indecency:

Constitutional Principles and Federal Statutes. Restrictions on cable television intended

to protect children are discussed in that report and also in this report under "Radio and

Television."

90 Sable Communications of California, Inc. v. Federal Communications Commission, 492

U.S. 115 (1989); Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991),

cert. denied, 502 U.S. 1072 (1992).

Speech Harmful to Children

Speech that is otherwise fully protected by the First Amendment may be

restricted in order to protect children. This is because the Court has "recognized that

there is a compelling interest in protecting the physical and psychological well-being

of minors."85 However, any restriction must be accomplished "‘by narrowly drawn

regulations without unnecessarily interfering with First Amendment freedoms.’ It

is not enough to show that the government’s ends are compelling; the means must be

carefully tailored to achieved those ends."86

Thus, the government may prohibit the sale to minors of material that it deems

"harmful to minors" ("so called ‘girlie’ magazines"), whether or not they are not

obscene as to adults.87 It may prohibit the broadcast of "indecent" language on radio

and television during hours when children are likely to be in the audience, but it may

not ban it around the clock unless it is obscene.88 Federal law currently bans indecent

broadcasts between 6 a.m. and 10 p.m.89 Similarly, Congress may not ban dial-aporn,

but it may (as it does at 47 U.S.C. § 223) prohibit it from being made available

to minors or to persons who have not previously requested it in writing.90

In Reno v. American Civil Liberties Union, the Supreme Court declared

unconstitutional two provisions of the Communications Decency Act (CDA) that

CRS-16

91 521 U.S. 844 (1997).

92 Id. at 874-875.

93 American Civil Liberties Association v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999), aff’d,

217 F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil

Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003). See

also, footnote 8 of this report.

prohibited indecent communications to minors on the Internet.91 The Court held that

the CDA’s "burden on adult speech is unacceptable if less restrictive alternatives

would be at least as effective in achieving the legitimate purpose that the statute was

enacted to serve." "[T]he governmental interest in protecting children from harmful

materials . . . does not justify an unnecessarily broad suppression of speech addressed

to adults. As we have explained, the Government may not ‘reduc[e] the adult

population . . . to . . . only what is fit for children.’"92

The Court distinguished the Internet from radio and television because (1) "[t]he

CDA’s broad categorical prohibitions are not limited to particular times and are not

dependent on any evaluation by an agency familiar with the unique characteristics of

the Internet,"(2) the CDA imposes criminal penalties, and the Court has never

decided whether indecent broadcasts "would justify a criminal prosecution," and (3)

radio and television, unlike the Internet, have, "as a matter of history . . . ‘received

the most limited First Amendment protection, . . . in large part because warnings

could not adequately protect the listener from unexpected program content. . . . [On

the Internet], the risk of encountering indecent material by accident is remote because

a series of affirmative steps is required to access specific material."

In 1998, Congress enacted the Child Online Protection Act (COPA), P.L. 105-

277, title XIV, to replace the CDA. COPA differs from the CDA in two main

respects: (1) it prohibits communication to minors only of "material that is harmful

to minors," rather than material that is indecent, and (2) it applies only to

communications for commercial purposes on publicly accessible Web sites. COPA

has not taken effect, because a constitutional challenge was brought and the district

court, finding a likelihood that the plaintiffs would prevail, issued a preliminary

injunction against enforcement of the statute pending a trial on the merits. The Third

Circuit affirmed, but, in Ashcroft v. American Civil Liberties Union, the Supreme

Court held that COPA’s use of community standards to define "material that is

harmful to minors" does not by itself render the statute unconstitutional. The

Supreme Court, however, did not remove the preliminary injunction against

enforcement of the statute, and remanded the case to the Third Circuit to consider

whether it is unconstitutional nonetheless. On March 6, 2003, the Third Circuit again

found the plaintiffs likely to prevail and affirmed the preliminary injunction.93

Children’s First Amendment Rights

In a case upholding high school students’ right to wear black arm bands to

protest the war in Vietnam, the Supreme Court held that public school students do

not "shed their constitutional rights to freedom of speech or expression at the

CRS-17

94 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

95 Bethel School District No. 463 v. Fraser, 478 U.S. 675 (1986).

96 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

97 E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F. Supp.

687 (E.D. N.Y. 1989).

98 Board of Education, Island Trees School District v. Pico, 457 U.S. 853 (1982).

99 Frisby v. Schultz, 487 U.S. 474, 481 (1988).

100 Id. at 487.

101 Ward v. Rock Against Racism, 491 U.S. 781 (1989).

102 Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Renton v. Playtime

Theaters, Inc., 475 U.S. 41 (1986). Although singling out "adult" material might appear to

be a content-based distinction, the Court in Renton said that regulations of speech are

content-neutral if they "are justified without reference to the content of the regulated

(continued...)

schoolhouse gate."94 They do, however, shed them to some extent. The Supreme

Court has upheld the suspension of a student for using a sexual metaphor in a speech

nominating another student for a student office.95 It has upheld censorship of a

student newspaper produced as part of the school curriculum.96 (Lower courts have

indicated that non-school-sponsored student writings may not be censored.97)

Finally, a plurality of the justices found that a school board must be permitted "to

establish and apply their curriculum in such a way as to transmit community values,"

but that it may not remove school library books in order to deny access to ideas with

which it disagrees for political reasons.98

Time, Place, and Manner Restrictions

Even speech that enjoys the most extensive First Amendment protection may

be subject to "regulations of the time, place, and manner of expression which are

content-neutral, are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication."99 In the case in which this

language appears, the Supreme Court allowed a city ordinance that banned picketing

"before or about" any residence to be enforced to prevent picketing outside the

residence of a doctor who performed abortions, even though the picketing occurred

on a public street. The Court noted that "[t]he First Amendment permits the

government to prohibit offensive speech as intrusive when the ‘captive’ audience

cannot avoid the objectionable speech."100

Thus, the Court, while acknowledging that music, as a form of expression and

communication, is protected under the First Amendment, upheld volume restrictions

placed on outdoor music in order to prevent intrusion on those in the area.101 Other

significant governmental interests, besides protection of captive audiences, may

justify content-neutral time, place, and manner restrictions. For example, in order to

prevent crime and maintain property values, a city may place zoning restrictions on

"adult" theaters and bookstores.102 And, in order to maintain the orderly movements

CRS-18

102 (...continued)

speech." 475 U.S., at 48 (emphasis in original). Zoning restrictions are justified as

measures to "prevent crime, protect the city’s retail trade, maintain property values, and

generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial

districts, and the quality of urban life,’ not to suppress the expression of unpopular views."

Id.

103 Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).

104 United States v. Grace, 461 U.S. 171 (1983).

105 City of Ladue v. Gilleo, 512 U.S. 43 (1994).

106 Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (1994). In this case, the

Court held that the challenged injunction was content-neutral, even though it was directed

at abortion protestors, because its purpose was to protect patients, not to interfere with the

protestors’ message.

107 Id. This is not "prior restraint analysis," which courts apply to content-based

injunctions; see, "Prior Restraint," above.

108 Id. at 773.

of crowds at a state fair, a state may limit the distribution of literature to assigned

locations.103

However, a time, place, and manner restriction will not be upheld in the absence

of sufficient justification or if it is not narrowly tailored. Thus, the Court held

unconstitutional a total restriction on displaying flags or banners on public sidewalks

surrounding the Supreme Court.104 And a time, place, and manner restriction will not

be upheld if it fails to "leave open ample alternative channels for communication."

Thus, the Court held unconstitutional an ordinance that prohibited the display of

signs from residences, because "[d]isplaying a sign from one’s own residence often

carries a message quite distinct from placing the same sign someplace else . . . ."105

When a court issues an injunction that restricts the time, place, or manner of a

particular form of expression, because prior restraint occurs, "a somewhat more

stringent application of general First Amendment principles" is required than is

required in the case of a generally applicable statute or ordinance that restricts the

time, place, or manner of speech.106 Instead of asking whether the restrictions are

"narrowly tailored to serve a significant governmental interest," a court must ask

"whether the challenged provisions of the injunction burden no more speech than

necessary to serve a significant government interest."107 Applying this standard, the

Supreme Court, in Madsen v. Women’s Health Center, Inc., upheld a state court

injunction that had ordered the establishment of a 36-foot buffer zone on a public

street outside a particular health clinic that performed abortions. The Court in this

case also upheld an injunction against noise during particular hours, but found that

a "broad prohibition on all ‘images observable’ burdens speech more than necessary

to achieve the purpose of limiting threats to clinic patients or their families."108 It

also struck down a prohibition on all uninvited approaches of persons seeking the

services of the clinic, and a prohibition against picketing, within 300 feet of the

residences of clinic staff. The Court distinguished the 300-foot restriction from the

CRS-19

109 See, text accompanying notes 99-100, supra.

110 519 U.S. 357 (1997).

111 530 U.S. 703, 707 (2000).

112 Id. at 714.

113 Id. at 722.

ordinance it had previously upheld that banned picketing "before or about" any

residence.109

In Schenck v. Pro-Choice Network of Western New York, the Court applied

Madsen to another injunction that placed restrictions on demonstrating outside an

abortion clinic.110 The Court upheld the portion of the injunction that banned

"demonstrating within fifteen feet from either side or edge of, or in front of,

doorways or doorway entrances, parking lot entrances, driveways and driveway

entrances of such facilities" — what the Court called "fixed buffer zones." It struck

down a prohibition against demonstrating "within fifteen feet of any person or

vehicles seeking access to or leaving such facilities" — what it called "floating buffer

zones." The Court cited "public safety and order" in upholding the fixed buffer

zones, but it found that the floating buffer zones "burden more speech than is

necessary to serve the relevant governmental interests" because they make it "quite

difficult for a protester who wishes to engage in peaceful expressive activity to know

how to remain in compliance with the injunction." The Court also upheld a

"provision, specifying that once sidewalk counselors who had entered the buffer

zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet

from the people they had been counseling and had to remain outside the boundaries

of the buffer zones."

In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful,

within 100 feet of the entrance to any health care facility, to "knowingly approach"

within eight feet of another person, without that person’s consent, "for the purpose

of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest,

education, or counseling with such other person."111 This decision is significant

because it upheld a statute that applies to everyone, and not, as in Madsen and

Schenck, merely an injunction directed to particular parties. The Court found the

statute to be a content-neutral time, place, and manner regulation of speech that

"reflects an acceptable balance between the constitutionally protected rights of lawabiding

speakers and the interests of unwilling listeners . . . ."112 The restrictions are

content-neutral because they regulate only the places where some speech may occur,

and because they apply equally to all demonstrators, regardless of viewpoint.

Although the restrictions do not apply to all speech, the "kind of cursory

examination" that might be required to distinguish casual conversation from protest,

education, or counseling is not "problematic."113 The law is "narrowly tailored" to

achieve the state’s interests. The eight-foot restriction does not significantly impair

the ability to convey messages by signs, and ordinarily allows speakers to come

within a normal conversational distance of their targets. Because the statute allows

the speaker to remain in one place, persons who wish to hand out leaflets may

position themselves beside entrances near the path of oncoming pedestrians, and

CRS-20

114 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

115 San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522,

537 (1987). This is known as the "O’Brien test," which was first formulated in the case

cited in note 125, infra.

116 Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). This case makes clear

that, although both "strict scrutiny" and the O’Brien test for incidental restrictions require

"narrow tailoring," "the same degree of tailoring is not required" under the two; under the

O’Brien test, "least-restrictive-alternative analysis is wholly out of place." Id. at 798-799

n.6. It is also out of place in applying the Central Hudson commercial speech test.

117 Clark, supra note 114, 468 U.S., at 298. And, "the validity of time, place, or manner

restrictions is determined under standards very similar to those applicable in the commercial

speech context." United States v. Edge Broadcasting, supra note 33, 509 U.S., at 430.

consequently are not deprived of the opportunity to get the attention of persons

entering a clinic.

Incidental Restrictions

Some laws are not designed to limit freedom of expression, but nevertheless can

have that effect. For example, when a National Park Service regulation prohibiting

camping in certain parks was applied to prohibit demonstrators, who were attempting

to call attention to the plight of the homeless, from sleeping in certain Washington,

D.C. parks, it had the effect of limiting the demonstrators’ freedom of expression.

Nevertheless, the Court found that application of the regulation did not violate the

First Amendment because the regulation was content-neutral and was narrowly

focused on a substantial governmental interest in maintaining parks "in an attractive

and intact condition."114

The Supreme Court has said that an incidental restriction on speech is

constitutional if it is not "greater than necessary to further a substantial governmental

interest."115 However, the Court has made clear that an incidental restriction, unlike

a content-based restriction, "need not be the least restrictive or least intrusive means"

of furthering a governmental interest. Rather, the restriction must be "narrowly

tailored," and "the requirement of narrow tailoring is satisfied ‘so long as the . . .

regulation promotes a substantial governmental interest that would be achieved less

effectively absent the regulation.’"116

The Court has noted that the standard for determining the constitutionality of an

incidental restriction "in the last analysis is little, if any, different from the standard

applied to time, place, or manner restrictions."117 Thus, the restriction on camping

may be viewed as a restriction on conduct that only incidentally affects speech, or,

if one views sleeping in connection with a demonstration as expressive conduct, then

the restriction may be viewed as a time, place, and manner restriction on expressive

conduct. In either case, as long as the restriction is content-neutral, the same standard

for assessing its constitutionality will apply.

CRS-21

118 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

119 Erie v. Pap’s A.M., 529 U.S. 277 (2000).

120 Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622

(1994), discussed under "Radio and Television," below. David Cole describes Turner as

"effectively giving bite to the O’Brien standard." He writes that, "if the Court had applied

the O’Brien standard the way it applied that standard in O’Brien, it should have upheld the

‘must carry’ rule. The O’Brien standard is extremely deferential." The Perils of

Pragmatism, LEGAL TIMES, July 25, 1994, at S27, S30.

121 Id. at 664.

122 Id. at 666.

123 Texas v. Johnson, 491 U.S. 397 (1989).

In 1991, the Supreme Court held that the First Amendment does not prevent the

government from requiring that dancers wear "pasties" and a "G-string" when they

dance (nonobscenely) in "adult" entertainment establishments. Indiana sought to

enforce a state statute prohibiting public nudity against two such establishments,

which asserted First Amendment protection. The Court found that the statute

proscribed public nudity across the board, not nude dancing as such, and therefore

imposed only an incidental restriction on expression.118 In 2000, the Supreme Court

again upheld the application of a statute prohibiting public nudity to an "adult"

entertainment establishment. It found that the statute was intended "to combat

harmful secondary effects," such as "prostitution and other criminal activity."119

In a 1994 case, the Supreme Court apparently put more teeth into the test for

incidental restrictions by remanding the case for further proceedings rather than

deferring to Congress’s judgment as to the necessity for the "must-carry" provisions

of the Cable Television Consumer Protection and Competition Act of 1992.120 To

justify an incidental restriction of speech, the Court wrote, the government "must

demonstrate that the recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and material way."121 The

Court added that its

obligation to exercise independent judgment when First Amendment rights are

implicated is not a license to reweigh the evidence de novo, or to replace

Congress’ factual predictions with our own. Rather, it is to assure that, in

formulating its judgments, Congress has drawn reasonable inferences based on

substantial evidence.122

Symbolic Speech

"The First Amendment literally forbids the abridgment only of ‘speech,’ but we

have long recognized that its protection does not end at the spoken or written

word."123 Thus wrote the Supreme Court when it held that a statute prohibiting flag

desecration violated the First Amendment. Such a statute is not content-neutral if it

CRS-22

124 United States v. Eichman, 496 U.S. 310 (1990).

125 United States v. O’Brien, 391 U.S. 367, 382 (1968).

126 Id. at 383.

127 505 U.S. 377 (1992).

128 Texas v. Johnson, supra note 123, at 414.

129 R.A.V., supra note 127, at 384-385 (emphasis in original).

130 Id. at 386.

131 Id. at 391.

is designed to protect "a perceived need to preserve the flag’s status as a symbol of

our Nation and certain national ideals."124

By contrast, the Court upheld a federal statute that made it a crime to burn a

draft card, finding that the statute served "the Government’s substantial interest in

assuring the continuing availability of issued Selective Service certificates," and

imposed only an "appropriately narrow" incidental restriction of speech.125 Even if

Congress’s purpose in enacting the statute had been to suppress freedom of speech,

"this Court will not strike down an otherwise constitutional statute on the basis of an

alleged illicit legislative motive."126

In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an

ordinance that prohibited the placing on public or private property of a symbol, such

as "a burning cross or Nazi swastika, which one knows or has reasonable grounds to

know arouses anger, alarm or resentment in others, on the basis of race, color, creed,

religion or gender."127 Read literally, this ordinance would clearly violate the First

Amendment, because, "[i]f there is a bedrock principle underlying the First

Amendment, it is that the Government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or disagreeable."128 In this case,

however, the Minnesota Supreme Court had construed the ordinance to apply only

to conduct that amounted to fighting words. Therefore, the question for the Supreme

Court was whether the ordinance, construed to apply only to fighting words, was

constitutional.

The Court held that it was not, because, although fighting words may be

proscribed "because of their constitutionally proscribable content," they may not "be

made the vehicles for content discrimination unrelated to their distinctively

proscribable content."129 Thus, the government may proscribe fighting words, but it

may not make the further content discrimination of proscribing particular fighting

words on the basis of hostility "towards the underlying message expressed."130 In this

case, the ordinance banned fighting words that insult "on the basis of race, color,

creed, religion or gender," but not "for example, on the basis of political affiliation,

union membership, or homosexuality. . . . The First Amendment does not permit St.

Paul to impose special prohibitions on those speakers who express views on

disfavored subjects."131 This decision does not, of course, preclude prosecution for

illegal conduct that may accompany cross burning, such as trespass, arson, or threats.

CRS-23

132 Id. at 396.

133 Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (emphasis added by the Court to its

quotation of the statute).

134 Virginia v. Black, 123 S. Ct. 1536 (2003). A plurality held, however, that a statute may

not presume, from the fact that a defendant burned a cross, that he had an intent to

intimidate. The state must prove that he did, as "a burning cross is not always intended to

intimidate," but may constitute a constitutionally protected expression of opinion. Id. at

1551.

135 Id. at 1549.

136 In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 123 S. Ct. 1829, 1833

(2003), the Supreme Court held that a fundraiser who retained 85 percent of gross receipts

from donors, but falsely represented that "a significant amount of each dollar donated would

be paid over to" a charitable organization, could be sued for fraud. "So long as the emphasis

is on what the fundraisers misleadingly convey, and not on percentage limitations on

solicitors’ fees per se, such [fraud] actions need not impermissibly chill protected speech."

(continued...)

As the Court put it: "St. Paul has sufficient means at its disposal to prevent such

behavior without adding the First Amendment to the fire."132

In a subsequent case, the Supreme Court held that its opinion in R.A.V. did not

mean that statutes that impose additional penalties for crimes that are motivated by

racial hatred are unconstitutional. Such statutes imposed enhanced sentences not for

bigoted thought, but for the commission of crimes that can inflict greater and

individual and societal harm because of their bias-inspired motivation. A defendant’s

motive has always been a factor in sentencing, and even in defining crimes; "Title

VII [of the Civil Rights Act of 1964], for example, makes it unlawful for an employer

to discriminate against an employee ‘because of such individual’s race, color,

religion, sex, or national origin.’"133

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it

unconstitutional for a state to prohibit burning a cross with the intent of intimidating

any person or group of persons.134 Such a prohibition does not discriminate on the

basis of a defendant’s beliefs – "as a factual matter it is not true that cross burners

direct their intimidating conduct solely to racial or religious minorities. . . . The First

Amendment permits Virginia to outlaw cross burning done with the intent to

intimidate because burning a cross is a particularly virulent form of intimidation.

Instead of prohibiting all intimidating messages, Virginia may choose to regulate this

subset of intimidating messages. . . ."135

Compelled Speech

On occasion, the government attempts to compel speech rather than to restrict

it. For example, in Riley v. National Federation of the Blind of North Carolina, Inc.,

a North Carolina statute required professional fundraisers for charities to disclose to

potential donors the gross percentage of revenues retained in prior charitable

solicitations.136 The Supreme Court held this unconstitutional, writing

CRS-24

136 (...continued)

Id. at 1840.

137 487 U.S. 781, 796-797 (1988) (emphasis in original).

138 471 U.S. 626, 651, 652 n.14 (1985) (emphasis in original).

139 481 U.S. 465 (1987).

140 Id. at 480.

There is certainly some difference between compelled speech and compelled

silence, but in the context of protected speech, the difference is without

constitutional significance, for the First Amendment guarantees "freedom of

speech," a term necessarily comprising the decision of both what to say and what

not to say.137

In the commercial speech context, by contrast, the Supreme Court held, in

Zauderer v. Office of Disciplinary Counsel, that an advertiser’s

constitutionally protected interest in not providing any particular factual

information in his advertising is minimal. . . . [A]n advertiser’s rights are

reasonably protected as long as disclosure requirements are reasonably related

to the State’s interest in preventing deception of consumers. . . . The right of a

commercial speaker not to divulge accurate information regarding his services

is not . . . a fundamental right.138

In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements

by lawyers that mention contingent-fee rates disclose whether percentages are

computed before or after deduction of court costs and expenses.

In Meese v. Keene, however, the Court upheld compelled disclosure in a

noncommercial context.139 This case involved a provision of the Foreign Agents

Registration Act of 1938, which requires that, when an agent of a foreign principal

seeks to disseminate foreign "political propaganda," he must label such material with

certain information, including his identity, the principal’s identity, and the fact that

he has registered with the Department of Justice. The material need not state that it

is "political propaganda," but one agent objected to the statute’s designating material

by that term, which he considered pejorative. The agent wished to exhibit, without

the required labels, three Canadian films on nuclear war and acid rain that the Justice

Department had determined were "political propaganda."

In Meese v. Keene, the Supreme Court upheld the statute’s use of the term,

essentially because it considered the term not necessarily pejorative. On the subject

of compelled disclosure, the Court wrote:

Congress did not prohibit, edit, or restrain the distribution of advocacy materials

. . . . To the contrary, Congress simply required the disseminators of such

material to make additional disclosures that would better enable the public to

evaluate the import of the propaganda.140

One might infer from this that compelled disclosure, in a noncommercial

context, gives rise to no serious First Amendment issue, and nothing in the Court’s

CRS-25

141 430 U.S. 705 (1977).

142 319 U.S. 624 (1943).

143 418 U.S. 241 (1974). In Pacific Gas & Electric Co .v. Public Utilities Commission of

California, 475 U.S. 1 (1986), the Court held that a state may not require a privately owned

utility company to include in its billing envelopes views of a consumer group with which

it disagrees. While a plurality opinion adhered to by four justices relied heavily on Tornillo,

there was not a Court majority consensus as to rationale.

144 514 U.S. 334, 357 (1995).

145 515 U.S. 557, 581 (1995).

opinion would seem to refute this inference. Thus, it seems impossible to reconcile

this opinion with the Court’s holding a year later in Riley (which did not mention

Meese v. Keene) that, in a noncommercial context, there is no difference of

constitutional significance between compelled speech and compelled silence.

In Meese v. Keene, the Court did not mention earlier cases in which it had struck

down laws compelling speech in a noncommercial context. In Wooley v. Maynard,

the Court struck down a New Hampshire statute requiring motorists to leave visible

on their license plates the motto "Live Free or Die."141 In West Virginia State Board

of Education v. Barnette, the Court held that a state may not require children to

pledge allegiance to the United States.142 In Miami Herald Publishing Co. v.

Tornillo, the Court struck down a Florida statute that required newspapers to grant

political candidates equal space to reply to the newspapers’ criticism and attacks on

their record.143

The Court decided two cases in its 1994-1995 term involving compelled speech.

In McIntyre v. Ohio Elections Commission, the Court, applying strict scrutiny, struck

down a compelled disclosure requirement by holding unconstitutional a state statute

that prohibited the distribution of anonymous campaign literature. "The State," the

Court wrote, "may, and does, punish fraud directly. But it cannot seek to punish

fraud indirectly by indiscriminately outlawing a category of speech, based on its

content, with no necessary relationship to the danger sought to be prevented."144

In Hurley v. Irish-American Gay Group of Boston, the Court held that

Massachusetts could not require private citizens who organize a parade to include

among the marchers a group imparting a message — in this case support for gay

rights — that the organizers do not wish to convey. Massachusetts had attempted to

apply its statute prohibiting discrimination on the basis of sexual orientation in any

place of public accommodations, but the Court held that parades are a form of

expression, and the state’s "[d]isapproval of a private speaker’s statement does not

legitimatize use of the Commonwealth’s power to compel the speaker to alter the

message by including one more acceptable to others."145

In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court upheld the

constitutionality of marketing orders promulgated by the Secretary of Agriculture that

imposed assessments on fruit growers to cover the cost of generic advertising of

CRS-26

146 521 U.S. 457 (1997).

147 Id., 521 U.S., at 471, 472. The Court found that the marketing orders did not raise a First

Amendment issue, but "simply a question of economic policy for Congress and the

Executive to resolve." The Central Hudson test (see "Commercial Speech," above),

therefore, was inapplicable. Id. at 474.

148 533 U.S. 405 (2001).

149 Id. at 413.

150 Id. at 411.

151 395 U.S. 367, 388 (1969).

fruits.146 The First Amendment, the Court held, does not preclude the government

from "compel[ling] financial contributions that are used to fund advertising,"

provided that such contributions do not finance "political or ideological" views.147

In United States v. United Foods, Inc., the Court struck down a federal statute

that mandated assessments on handlers of fresh mushrooms to fund advertising for

the product.148 The Court did not apply the Central Hudson commercial speech test,

but rather found "that the mandated support is contrary to First Amendment

principles set forth in cases involving expression by groups which include persons

who object to the speech, but who, nevertheless, must remain members of the group

by law or necessity."149 It distinguished Glickman on the ground that "[i]n Glickman

the mandated assessments for speech were ancillary to a more comprehensive

program restricting marketing authority. Here, for all practical purposes, the

advertising itself, far from being ancillary, is the principal object of the regulatory

scheme."150

Radio and Television

Radio and television broadcasting has more limited First Amendment protection

than other media. In Red Lion Broadcasting Co. v. Federal Communications

Commission, the Supreme Court invoked what has become known as the "scarcity

rationale" to justify this discrimination:

Where there are substantially more individuals who want to broadcast than there

are frequencies to allocate, it is idle to posit an unabridgeable First Amendment

right to broadcast comparable to the right of every individual to speak, write, or

publish.151

The Court made this statement in upholding the constitutionality of the Federal

Communication Commission’s "fairness doctrine," which required broadcast media

licensees to provide coverage of controversial issues of interest to the community and

to provide a reasonable opportunity for the presentation of contrasting viewpoints on

such issues.

Later, in Federal Communications Commission v. Pacifica Foundation, the

Court upheld the power of the FCC "to regulate a radio broadcast that is indecent but

CRS-27

152 438 U.S. 726, 729 (1978).

153 Id. at 748-749. In Action for Children’s Television v. Federal Communications

Commission (ACT III), 58 F.3d 654, 660 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S.

1043 (1996), the court of appeals, in upholding a ban on indecent broadcasts from 6 a.m. to

10 p.m., wrote: "While we apply strict scrutiny to regulations of this kind regardless of the

medium affected by them, our assessment of whether section 16(a) survives that scrutiny

must necessarily take into account the unique context of the broadcast media." See,

"Speech Harmful to Children," above.

154 Turner, supra note 120, 512 U.S., at 639.

155 Id. at 667-668.

156 On remand, the lower court upheld the must-carry rules, and the Supreme Court affirmed,

finding "that the must-carry provisions further important governmental interests; and . . . do

not burden substantially more speech than necessary to further those interests." Turner

Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 185

(1997).

157 518 U.S. 727 (1996).

not obscene."152 The Court cited two distinctions between broadcasting and other

media: "First, the broadcast media have established a uniquely pervasive presence in

the lives of all Americans . . . confront[ing] the citizen, not only in public, but also

in the privacy of the home," and "Second, broadcasting is uniquely accessible to

children."153

In Turner Broadcasting System, Inc. v. Federal Communications Commission,

the Court declined to question the continuing validity of the scarcity rationale, but

held that "application of the more relaxed standard of scrutiny adopted in Red Lion

and other broadcast cases is inapt when determining the First Amendment validity

of cable regulation."154 In Turner, however, the Court found the "must-carry"

provisions of the Cable Television Consumer Protection and Competition Act of

1992, which require cable television systems to devote a portion of their channels to

the transmission of local broadcast television stations, to be content-neutral in

application and subject only to the test for incidental restrictions on speech.

Attempting to apply this test, however, the Court found "genuine issues of material

fact still to be resolved" as to whether "broadcast television is in jeopardy" and as to

"the actual effects of must-carry on the speech of cable operators and cable

programmers."155 It therefore remanded the case for further proceedings.156

In Denver Area Educational Telecommunications Consortium, Inc. v. Federal

Communications Commission, a plurality of the Supreme Court (four justices)

apparently retreated from the Court’s position in Turner that cable television is

entitled to full First Amendment protection.157 In Part II of its opinion, the plurality

upheld § 10(a) of the Cable Television Consumer Protection and Competition Act

of 1992, 47 U.S.C. § 532(h), which permits cable operators to prohibit indecent

material on leased access channels. (The Cable Communications Policy Act of 1984

had required cable operators to provide leased access and public access channels free

of operator editorial control.) In upholding § 10(a), the Court, citing Pacifica, noted

that cable television "is as ‘accessible to children’ as over-the-air broadcasting," has

also "established a uniquely pervasive presence in the lives of all Americans," and

CRS-28

158 Id. at 745.

159 Id. at 748.

160 Id. at 743.

161 Id. at 755.

162 Id. at 766.

163 529 U.S. 803 (2000).

can also "‘confron[t] the citizen’ in ‘the privacy of the home,’ . . . with little or no

prior warning."158 It also noted that its "distinction in Turner, . . . between cable and

broadcast television, relied on the inapplicability of the spectrum scarcity problem

to cable," but that that distinction "has little to do with a case that involves the effects

of television viewing on children."159 Applying something less than strict scrutiny,

the Court concluded "that § 10(a) is a sufficiently tailored response to an

extraordinarily important problem."160

In Part III of Denver Area, a majority of the Court (six justices) struck down

§ 10(b) of the 1992 Act, 47 U.S.C. § 532(j), which required cable operators, if they

do not prohibit such programming on leased access channels, to segregate it on a

single channel and block that channel unless the subscriber requests access to it in

writing. In this part of the opinion, the Court seemed to apply strict scrutiny, finding

"that protection of children is a ‘compelling interest,’" but "that, not only is it not a

‘least restrictive alternative,’ and is not ‘narrowly tailored’ to meet its legitimate

objective, it also seems considerably ‘more extensive than necessary.’"161

In Part IV, which only three justices joined, the Court struck down § 10(c), 42

U.S.C. § 531 note, which permitted cable operators to prohibit indecent material on

public access channels. Without specifying the level of scrutiny they were applying,

the justices concluded "that the Government cannot sustain its burden of showing

that § 10(c) is necessary to protect children or that it is appropriately tailored to

secure that end."162

In United States v. Playboy Entertainment Group, Inc., the Supreme Court made

clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based

speech restriction on cable television.163 The Court struck down a federal statute

designed to "shield children from hearing or seeing images resulting from signal

bleed," which refers to blurred images or sounds that come through to nonsubscribers.

The statute required cable operators, on channels primarily dedicated

to sexually oriented programming, either to fully scramble or otherwise fully block

such channels, or to not provide such programming when a significant number of

children are likely to be viewing it, which, under an F.C.C. regulation meant to

transmit the programming only from 10 p.m. to 6 a.m. The Court apparently

assumed that the government had a compelling interest in protecting children from

sexually oriented signal bleed, but found that Congress had not used the least

restrictive means to do so. Congress in fact had enacted another provision that was

less restrictive and that served the government’s purpose. This other provision

requires that, upon request by a cable subscriber, a cable operator, without charge,

fully scramble or fully block any channel to which a subscriber does not subscribe.

CRS-29

164 South Dakota v. Dole, 483 U.S. 203, 206-207 (1987).

165 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (striking down state university’s refusal

to renew teacher’s contract because of his public criticism of the college administration).

166 468 U.S. 364 (1984).

167 See, id. at 400.

168 Rust v. Sullivan, 500 U.S. 173, 193 (1991).

169 Id. at 196.

Freedom of Speech and Government Funding

The Supreme Court has held that Congress, incident to its power to provide for

the general welfare (Art. I, § 8, cl. 1),

may attach conditions on the receipt of federal funds, and has repeatedly

employed the power "to further broad policy objectives by conditioning receipt

of federal moneys upon compliance with federal statutory and administrative

directives." . . . The breadth of this power was made clear in United States v.

Butler, 297 U.S. 1, 66 (1936), where the Court . . . determined that "the power

of Congress to authorize expenditure of public moneys for public purposes is not

limited by the direct grants of legislative power found in the Constitution."

Thus, objectives not thought to be within Article I’s "enumerated legislative

fields," id., at 65, may nevertheless be attained through the use of the spending

power and the conditional grant of federal funds.164

This means that Congress may regulate matters by attaching conditions to the

receipt of federal funds that it might lack the power to regulate directly. However,

the Court added, "other constitutional provisions may provide an independent bar to

the conditional grant of federal funds." One of these other constitutional provisions

is the First Amendment. The Court has held, in fact, that the government "may not

deny a benefit to a person on a basis that infringes his constitutionally protected

interests — especially, his interest in freedom of speech."165 Similarly, in Federal

Communications Commission v. League of Women Voters, the Court declared

unconstitutional a federal statute that prohibited noncommercial television and radio

stations that accepted federal funds from engaging in editorializing, even with

nonfederal funds.166

Congress would have the authority to prohibit television and radio stations from

using the federal funds they accept to engage in editorializing, as the Court would

view Congress in that case not as limiting speech, but as choosing to fund one

activity to the exclusion of another.167 "A refusal to fund protected activity [i.e.,

speech], without more, cannot be equated with the imposition of a ‘penalty’ on that

activity."168 In Rust v. Sullivan, the case in which this quotation appears, the Court

upheld a "gag order" that prohibited family planning clinics that accept federal funds

from engaging in abortion counseling or referrals. The Court found that, in this case,

"the government is not denying a benefit to anyone, but is instead simply insisting

that public funds be spent for purposes for which they were authorized."169

CRS-30

170 Id. at 196. Thus, a grantee who accepts federal funds to operate a family planning clinic

may be prohibited from using nonfederal funds to provide abortion counseling through the

clinic, but may not be prohibited from using nonfederal funds to provide abortion counseling

outside the clinic.

171 Id. at 213 (emphasis in original).

172 Id. at 200.

173 524 U.S. 569, 572 (1998).

174 Id. at 587.

175 Id. at 581. Justice Scalia, in a concurring opinion, claimed that this interpretation of the

statute "gutt[ed] it." He believed that the statute "establishes content- and viewpoint-based

criteria upon which grant applications are to be evaluated. And that is perfectly

constitutional." Id. at 590.

176 Id. at 585.

In Rust v. Sullivan, the Court also indicated that it will allow Congress to

condition the receipt of federal funds on acceptance of a limitation on the use of

nonfederal funds as well as of federal funds, but apparently will not allow Congress

to limit the use of nonfederal funds outside the project that accepts the federal

funds.170 Justice Blackmun, dissenting, feared that, "[u]nder the majority’s

reasoning, the First Amendment could be read to tolerate any governmental

restriction upon an employee’s speech so long as that restriction is limited to the

funded workplace."171

The Court also "recognized that the university is a traditional sphere of free

expression so fundamental to the functioning of our society that the Government’s

ability to control speech within that sphere by means of conditions attached to the

expenditure of Government funds is restricted by the vagueness and overbreadth

doctrines of the First Amendment."172

In National Endowment for the Arts v. Finley, the Supreme Court upheld the

constitutionality of a federal statute (20 U.S.C. § 954(d)(1)) requiring the NEA, in

awarding grants, to "tak[e] into consideration general standards of decency and

respect for the diverse beliefs and values of the American public."173 The Court

acknowledged that, if the statute were "applied in a manner that raises concern about

the suppression of disfavored viewpoints,"174 then such application might be

unconstitutional. The statute on its face, however, is constitutional because it

"imposes no categorical requirement," being merely "advisory."175 "Any contentbased

considerations that may be taken into account in the grant-making process are

a consequence of the nature of arts funding. . . . The ‘very assumption’ of the NEA

is that grants will be awarded according to the ‘artistic worth of competing

applications,’ and absolute neutrality is simply ‘inconceivable.’"176

The Court also found that the terms of the statute, "if they appeared in a criminal

statute or regulatory scheme, . . . could raise substantial vagueness concerns. . . . But

CRS-31

177 Id. at 588-589.

178 531 U.S. 533 (2001).

179 Id. at 541, 542.

180 Id. at 544, 545, 546.

181 123 S. Ct. 2297 (2003).

182 Id. at 2303.

183 Id.

when the Government is acting as patron rather than as sovereign, the consequences

of imprecision are not constitutionally severe."177

In Legal Services Corporation v. Velazquez, the Court struck down a provision

of the Legal Services Corporation Act that prohibited recipients of Legal Services

Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the

poor in civil matters) from representing a client who seeks "to amend or otherwise

challenge existing [welfare] law."178 This meant that, even with non-federal funds,

a recipient of federal funds could not argue that a state welfare statute violated a

federal statute or that a state or federal welfare law violated the U.S. Constitution.

If a case was underway when such a challenge became apparent, the attorney had to

withdraw.

The Supreme Court distinguished this situation from that in Rust v. Sullivan on

the ground "that the counseling activities of the doctors under Title X amounted to

governmental speech," whereas "an LSC-funded attorney speaks on behalf of the

client in a claim against the government for welfare benefits."179 Furthermore, the

restriction in this case "distorts the legal system" by prohibiting "speech and

expression upon which courts must depend for the proper exercise of the judicial

power," and thereby is "inconsistent with accepted separation-of-powers

principles."180

In United States v. American Library Association,181 the Supreme Court

followed Rust v. Sullivan, upholding the Children’s Internet Protection Act, which

requires schools and libraries that accept federal funds to purchase computers used

to access the Internet to block or filter minors’ Internet access to visual depictions

that are obscene, child pornography, or "harmful to minors"; and to block or filter

adults’ Internet access to visual depictions that are obscene or child pornography.

Blocking or filtering technology may be disabled, however, "to enable access for

bona fide research or other lawful purpose."

The plurality noted that "Congress may not ‘induce’ the recipient [of federal

funds] ‘to engage in activities that would themselves be unconstitutional.’"182 The

plurality therefore viewed the question before the Court as "whether [public] libraries

would violate the First Amendment by employing the filtering software that CIPA

requires."183 Does CIPA, in other words, effectively violate library patrons rights?

The plurality concluded that it does not, as "Internet access in public libraries is

CRS-32

184 Id. at 2304.

185 Id. at 2308.

186 Id.

187 Id. at 2309 (emphasis in original).

188 391 U.S. 563, 568 (1968).

189 Id.

neither a ‘traditional’ or a ‘designated’ public forum,"184and that therefore it would

not be appropriate to apply strict scrutiny to determine whether the filtering

requirements are constitutional.

But the plurality also considered whether CIPA imposes an unconstitutional

condition on the receipt of federal assistance — in other words, does it violate public

libraries’ rights by requiring them to limit their freedom of speech if they accept

federal funds? The plurality found that, assuming that government entities have First

Amendment rights (it did not decide the question), CIPA does not infringe them.

This is because CIPA does not deny a benefit to libraries that do not agree to use

filters; rather, as in Rust v. Sullivan, the statute "simply insist[s] that public funds be

spent for the purposes for which they were authorized."185 "CIPA does not ‘penalize’

libraries that choose not to install such software, or deny them the right to provide

their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’

decision not to subsidize their doing so."186

The Court distinguished Velazquez on the ground that public libraries have no

role comparable to that of legal aid attorneys "that pits them against the Government,

and there is no comparable assumption that they must be free of any conditions that

their benefactors might attach to the use of donated funds or other assistance."187

Free Speech Rights of Government Employees

and Government Contractors

In Pickering v. Board of Education, the Supreme Court said that "it cannot be

gainsaid that the State has interests as an employer in regulating the speech of its

employees that differ significantly from those it possesses in connection with the

regulation of speech of the citizenry in general."188 In this case, the Supreme Court

held it unconstitutional for a school board to fire a teacher for writing a letter to a

local newspaper criticizing the administration of the school system. The Court did

not, however, hold that the teacher had the same right as a private citizen to write

such a letter. Rather, it balanced "the interests of the teacher, as a citizen, in

commenting upon matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees."189 In this case, the Court found that the statements in the letter were

in no way directed towards any person with whom appellant [the teacher] would

normally be in contact in the course of his daily work as a teacher. Thus no

question of maintaining either discipline by immediate superiors or harmony

CRS-33

190 Id. at 569-570.

191 416 U.S. 134, 140 (1974).

192 Id. at 162.

193 461 U.S. 138 (1983).

194 Id. at 146-147.

among coworkers is presented here. Appellant’s employment relationships with

the Board . . . are not the kind of close working relationships for which it can

persuasively be claimed that personal loyalty and confidence are necessary to

their proper functioning.190

In Arnett v. Kennedy, the Supreme Court again balanced governmental interests

and employee rights, and this time sustained the constitutionality of a federal statute

that authorized removal or suspension without pay of an employee "for such cause

as will promote the efficiency of the service," where the "cause" cited was an

employee’s speech.191 The employee’s speech in this case, however, consisted in

falsely and publicly accusing the director of his agency of bribery. The Court

interpreted the statute to proscribe

only that public speech which improperly damages and impairs the reputation

and efficiency of the employing agency, and it thus imposes no greater controls

on the behavior of federal employees as are necessary for the protection of the

Government as employer. Indeed, the Act is not directed at speech as such, but

at employee behavior, including speech, which is detrimental to the efficiency

of the employing agency.192

In Connick v. Myers, an assistant district attorney was fired for insubordination

after she circulated a questionnaire among her peers soliciting views on matters

relating to employee morale.193 The Supreme Court upheld the firing, distinguishing

Pickering on the ground that, in that case, unlike in this one, the fired employee had

engaged in speech concerning matters of public concern:

When employee expression cannot be fairly considered as relating to any matter

of political, social, or other concern to the community, government officials

should enjoy a wide latitude in managing their offices, without intrusive

oversight by the judiciary in the name of the First Amendment. . . .

We do not suggest, however, that Myers’ speech, even if not touching upon a

matter of public concern, is totally beyond the protection of the First

Amendment. "[T]he First Amendment does not protect speech and assembly

only to the extent it can be characterized as political. . . ." . . . We hold only that

when a public employee speaks not as a citizen upon matters of public concern,

but as an employee upon matters only of personal interest, absent the most

unusual of circumstances, a federal court is not the appropriate forum in which

to review the wisdom of a personnel decision taken by a public agency allegedly

in reaction to the employee’s behavior.194

In Connick v. Myers, however, one question in Myers’ questionnaire did touch

upon a matter of public concern. Yet the Court held that this did not mean that the

government had to meet a higher burden to justify the firing. Rather, the Court

CRS-34

195 Id. at 154.

196 483 U.S. 378, 380 (1987).

197 Id. at 390-391.

198 See, e.g., Connick v. Myers, supra note 193, 461 U.S., at 152 ("Also relevant is the

manner, time, and place in which the questionnaire was distributed.").

199 511 U.S. 661, 668 (1994).

200 Id. at 677 (emphasis in original).

viewed the fact that one question touched upon a matter of public concern as one of

a variety of factors to be weighed in the balance. It also considered that the

questionnaire interfered with working relationships, was prepared and distributed at

the office, arose out of an employment dispute, and was not circulated to obtain

useful research. The Court repeated something it had said in Pickering: it did "not

deem it either appropriate or feasible to attempt to lay down a general standard

against which all such statements may be judged."195

In Rankin v. McPherson, the Court upheld the right of an employee to remark,

after hearing of an attempt on President Reagan’s life, "If they go for him again, I

hope they get him."196 The Court considered the fact that the statement dealt with a

matter of public concern, did not amount to a threat to kill the President, did not

interfere with the functioning of the workplace, and was made in a private

conversation with another employee and therefore did not discredit the office.

Furthermore, as the employee’s duties were purely clerical and encompassed "no

confidential, policymaking, or public contact role," her remark did not indicate that

she was "unworthy of employment."197

These Supreme Court cases indicate the relevant factors in determining whether

a government employee’s speech is protected by the First Amendment. It should be

emphasized that the Court considers the time, place, and manner of expression.198

Thus, if an employee made political speeches on work time, such that they interfered

with his or others’ job performance, he could likely be fired as "unworthy of

employment." At the same time, he could not be fired for the particular political

views he expressed, unless his holding of those views made him unfit for the job.

Thus, a governmental employer could not allow employees to make speeches in

support of one political candidate on work time, but not allow employees to make

speeches in support of that candidate’s opponent. But a Secret Service agent

assigned to guard the President would not have the same right as the clerical worker

in Rankin to express the hope that the President be assassinated.

In Waters v. Churchill, a plurality of justices concluded that, in applying the

Connick test — "what the speech was, in what tone it was delivered, what the

listener’s reactions were" — the court should not ask the jury to determine the facts

for itself.199 Rather, the court should apply the test "to the facts as the employer

reasonably found them to be."200 That is, the employer need not "come to its factual

conclusions through procedures that substantially mirror the evidentiary rules used

CRS-35

201 Id. at 676, 677.

202 513 U.S. 454 (1995).

203 Id. at 477.

204 518 U.S. 668, 670 (1996).

205 Id. at 673.

206 Id. at 685.

207 427 U.S. 347 (1976).

208 445 U.S. 507 (1980).

209 O’Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 714 (1996).

210 Id.

in court," but it may not come to them based on no evidence, or on "extremely weak

evidence when strong evidence is clearly available."201

In United States v. National Treasury Employees Union, the Court struck down

a law that prohibited federal employees from accepting any compensation for making

speeches or writing articles, even if neither the subject of the speech or article nor the

person or group paying for it had any connection with the employee’s official duties.

The prohibition did not apply to books, nor to fiction or poetry.202 Doing the

balancing it had mandated in Pickering, the Court concluded that "[t]he speculative

benefits the honoraria ban may provide the Government are not sufficient to justify

this crudely crafted burden on respondents’ freedom to engage in expressive

activities."203

In Board of County Commissioners v. Umbehr, the Court held that "the First

Amendment protects independent contractors from the termination of at-will

government contracts in retaliation for their exercise of the freedom of speech."204

The Court held that, in determining whether a particular termination violates the First

Amendment, "the Pickering balancing test, adjusted to weigh the government’s

interests as contractor rather than as employer," should be used.205 The Court did

"not address the possibility of suits by bidders or applicants for new government

contracts . . . ."206

In Elrod v. Burns207 and Branti v. Finkel,208 the Supreme Court held that

"[g]overnment officials may not discharge public employees for refusing to support

a political party or its candidates, unless political affiliation is a reasonably

appropriate requirement for the job in question."209 In O’Hare Truck Service, Inc. v.

Northlake, the Court held "that the protections of Elrod and Branti extend to . . . [a

situation] where the government retaliates against a contractor, or a regular provider

of services, for the exercise of rights of political association or the expression of

political allegiance."210